Harvard Law Prof Urges California, New York to Challenge Presidential Election

Harvard professor Lawrence Lessig says New York and California should challenge state winner-take-all rules governing the electoral college. (Photo by Thos Robinson/Getty Images)

Harvard law school professor Lawrence Lessig has sparked an effort to urge attorneys general in California and New York to challenge the presidential election in the U.S. Supreme Court, arguing the current system of allocating Electoral College votes deprives voters of their constitutional rights.

A group called Taxpayers for Fairness has filed a petition on the site change.org, urging New York AG Eric Schneiderman to take action on behalf of New York voters.

So far almost 30,000 people have signed the petition.

Ironically, the legal challenge would be based on a Supreme Court decision in the 2000 election that threw the presidential election to Republican George W. Bush.

Of significance, the court ruled by a 7-to-2 majority that the Equal Protection Clause was applicable to how states counted votes in federal elections.

Lessig and others have argued that Electoral College votes should be award proportionally based on the popular vote. Such a system was never envisioned by the Founding Fathers, who recommended awarding votes based on congressional districts.

If votes were awarded proportionally, Clinton would have won the election with 270 electoral votes. Trump would have received 230. As it is, she won the popular vote by nearly 3 million votes, yet Trump won the Electoral College.

That fact that Clinton won the popular vote by a large margin yet lost the election has had a destabilizing effect on the election and raised questions about the legitimacy of Trump’s election.

The Constitution does not mandate the method the states use to select Electors. That decision was left up to the individual states.

Winner-take-all (WTA) rules emerged in the early 19th century as a way for state legislatures to control the federal election. James Madison expressed dismay at the trend in an 1823 letter to George Hay and warned of the dangers it presented.

Even so, the rule was enacted in most states by 1872 during the height of the Jim Crow era. Only Nebraska and Maine award electors proportionally.

Proponents argue that it gives small states a say in the election. But when applied to modern day elections the imbalance it causes is striking.

Atlanta lawyer Jerry L. Sims, has researched the legal argument and notes in a separate essay that a “reasonable argument” can be made that WTA rules are an unconstitutional denial of equal protection clause and the principle of one-man-one-vote. He explains:

Since the Electoral system was adopted vast changes have occurred in state populations, so that as of 2010 our least populous state, Wyoming had a population 563,626, and 3 presidential Electors, and our most populous State, California had a population of 37,253,956 and 55 presidential Electors. In other words, California had a population more than 66 times greater than Wyoming while having only 18 times as many presidential Electors. As of 2010 our most populous 9 States in aggregate have a larger population than the other 40 states and the District of Columbia combined. The large concentration of population in a handful of states combined with the winner-take-all method of selecting Electors has skewed the original constitutional design so that the likelihood that a candidate who loses the popular vote will win the Electoral College has become greater than ever before.”

“To be clear, Trump did not win the Electoral College because of a constitutional design, he won because of the winner-take-all system of allocating Electors and that critical legal factor is strictly a function of State law,” Sims argues.

“That raises what should be an obvious and much more fiercely contested question—why isn’t WTA being challenged by the Democrats in this election?” Lessig contends.

While some may argue that it’s unfair to Trump to change the rules now that the election is over, Lessig asserts that voters suffered the greater harm.

“What about the unfairness being felt by the millions of voters whose votes were effectively diluted, or essentially disenfranchised? Why doesn’t their harm also weigh in the balance?” he argues.

“It’s perfectly clear that the Attorney General of New York or California could walk into the Supreme Court tomorrow, and ask the Court to hear the case,” he adds. “Delaware tried to do this exactly fifty years ago, but the Court ducked the question.”

Schneiderman probably knows Trump better than any law enforcement officials in the nation. He’s witnessed first hand his unprincipled behavior and successfully sued him for fraud involving the defunct Trump University.

But this isn’t solely about Trump. It’s about restoring balance to our presidential elections to prevent the widespread denial of constitutional rights to millions of voters.

Keith Girard has 30 years of experience as an award-winning reporter, editor-in-chief, and senior media executive. Keith’s career began in Washington, D.C., where he was a reporter for The Washington Post and a contributing editor for Regardie's and Washingtonian magazines. He also worked as a writer/producer in CNN's Washington Bureau and has written one book on the U.S. Marines in the Gulf War.